Civil Engineering Reference
In-Depth Information
judge is no longer permitted to try the case and has to withdraw. If no
settlement is reached by the parties, the judge offers an opinion on the
merits of the case as s/he sees them. Of course the CSP does mean that
another judge has to pick up the case and so would duplicate the work
of the original judge. However, despite the low take-up, the scheme is
considered by the TCC to be a success as they feel that it offers mediation
to parties who may not otherwise consider it, and it enables the judge,
who has considerable knowledge of the case and the relevant law, to
help the parties achieve a settlement without there being an outright
winner or loser.
2.2
Resolving disputes through recommendation
2.2.1
Neutral fact-finding
NFF involves a jointly appointed neutral person, who may well be an
expert in the field, investigating particular issues and reporting jointly
to the parties. This is intended to clarify particular issues that may be
causing a blockage owing to ignorance or differences of understanding.
The result is non-binding and may still lead to another ADR process for
resolution of the dispute.
2.2.2
Dispute review boards
Dispute review boards (DRB) are becoming increasingly popular both
in the UK and in Europe. The DRB is made up of three experienced
construction professionals, selected at the beginning of the project, who
hear disputes when they arise and make non-binding recommendations
for resolution. The three members comprise one person selected by each
party (and agreed by the other party) and a third selected by the other
two who then acts as Chair of the DRB. The DRB only has the authority
granted to it by the parties. The DRB's recommendation may be accepted
temporarily by the parties until the matter is finally determined by the
courts or arbitrator.
2.2.3
Early neutral evaluation (also judicial appraisal)
ENE involves the evaluation by a jointly appointed neutral person, often
a judge, of the presented facts from all parties, producing a non-binding
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